Attorney General Won't Challenge Gay Marriage Licenses

Sarah Santos and Jamonica Hudgin pose for a picture with their marriage license at the Dona Ana County Clerk's Office in Las Cruces, N.M. (AP Photo)

(UPDATE: On Friday, a district judge in New Mexico ordered the Sante Fe County Clerk's office to also begin issuing marriage licenses to same-sex couples, the Associated Press reported)

New Mexico may have become the 14th state to allow gay marriage – or at least part of the state.

One county clerk's decision to issue same-sex couples marriage licenses Wednesday and the attorney general's follow-up announcement that he wouldn't block them may have cleared the way for couples to be issued marriage licenses in any county where local officials approve them. More than 40 couples received licenses on Wednesday.

For the time being, nothing is stopping other county clerks from issuing marriage licenses to same-sex couples, although pending litigation could eventually stop the practice or even invalidate marriages resulting from them.

Wednesday's developments are the latest in a tangled history of the gay marriage debate in New Mexico. The state is the only one in the U.S. without a law that explicitly bans or allows same-sex marriage or civil unions and the state's marriage statutes are seen as gender neutral.

In 2004, 66 same-sex couples received marriage licenses when a Sandoval County Clerk decided to approve them. Then-Attorney General Patricia Madrid ordered the clerk to stop after eight hours, and the issue's been in limbo ever since.

Wednesday's decision by the Doña Ana County Clerk is distinguished from the previous episode by Attorney General Gary King's decision not to block the clerk – or any others in the state – from issuing licenses to gay couples. The move leaves the decision about same-sex marriage licenses – and, in practice, the legality of gay marriage – up to the discretion of county clerks for now.

In a statement, the attorney general's office reiterated its position that same-sex couples are better off waiting for a final determination on the state's gay marriage laws, but also said it wouldn't stand in the way of couples receiving licenses in the meantime. The Democratic attorney general has said the state's practice of not allowing same-sex couples to marry is unconstitutional, but has asked county officials to wait for courts to decide the issue.

Since 2004, the state has neither moved to solidify its ban on gay marriage nor approved a measure to allow them. Democrats control the legislature but have been unable to coalesce around the issue. Gov. Susana Martinez, a Republican, is opposed.

Polls in the state have showed plurality support for the unions. The state does recognize same-sex marriages performed elsewhere.

The U.S. Supreme Court ruling that struck down the federal Defense of Marriage Act and California's Proposition 8 ban on same-sex marriage has led to a raft of lawsuits challenging state gay marriage bans, including several in New Mexico.

In a statement, Doña Ana County Clerk Lynn Ellins acknowledged the pending legal fights, but said he would not wait for courts to determine whether the state's practice of barring same-sex couples from marriage was unconstitutional.

“It is clear that the state's marriage statutes are gender neutral and do not expressly prohibit Doña Ana County from issuing marriage licenses to same-gender couples,” he said. “Any further denial of marriage licenses to these couples violates the United States and New Mexico Constitution and the New Mexico Human Rights Act.”

Doña Ana County's action is the latest in a string of moves by local officials elsewhere deciding to issue same-sex marriage licenses in the wake of the Supreme Court's ruling.

As local media reported in New Mexico, other clerks around the state are either unsure or are unlikely to follow suit and offer licenses to same-sex couples at this time, especially with court cases pending.

If 2004 is any indication, Doña Ana County officials could face a public backlash. Sandoval County Clerk Victoria Dunlap, who issued the licenses in 2004, was censured by her own Republican Party and defeated in a primary challenge by a 4-to-1 margin.

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